(Disponible en français : Résumé – L’aide médicale à mourir au Canada après l’arrêt Carter c. Canada)
In February 2015, the Supreme Court of Canada released Carter v. Canada (Attorney General) (the Carter decision), an important decision about the law on assisted dying. The law had been unsuccessfully challenged twenty years earlier at the Supreme Court in Rodriguez v. British Columbia (Attorney General). In the Carter decision, the Court found that the Criminal Code provisions that make it a crime to help a person end their life violate the Canadian Charter of Rights and Freedoms. As a result, the Government of Canada, Parliament and some groups reviewed the law surrounding assisted dying and considered options for changing it. In Parliament, a joint Senate and House of Commons committee studied the issue and made recommendations to the government about what a new law should include. In its report, released in February 2016, the committee used the term “medical assistance in dying,” or MAID.
In April 2016, the Government of Canada tabled Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying). The bill set out rules about who could have access to MAID and what steps medical practitioners and nurse practitioners had to take to make sure the person qualified for MAID. This included making sure that two independent medical or nurse practitioners reviewed the patient’s case and agreed that the patient met the criteria for MAID (including having a “grievous and irremediable medical condition” and being in a state in which “natural death has become reasonably foreseeable”). They were also required to ensure that the patient was not pressured by anyone into making the decision to have MAID.
Bill C-14 became law in June 2016. The law was challenged almost immediately as being too restrictive. In September 2019, the Superior Court of Quebec struck down the part of the law that said that a person’s death had to be “reasonably foreseeable” to access MAID. Since then, Prime Minister Justin Trudeau has noted that he would be introducing amendments to the law to make it broader.
Not everyone agrees with the practice of MAID, and health professionals who feel that MAID goes against their conscience or religious beliefs have sought to ensure that they are protected from having to participate in MAID. Some of the medical professional regulatory bodies have policies that state that a medical practitioner who objects to MAID because of conscience or religion must provide an “effective referral” if a patient wants MAID.
The law requires that three further issues related to MAID be independently reviewed: MAID for “mature minors,” i.e., children who have the mental capacity to make their own decisions about treatment; advance requests for MAID, meaning that an individual can give consent to MAID sometime in the future while the person is still mentally competent to do so; and MAID for someone who is not physically ill but rather has a mental disorder.
The Government of Canada asked the Council of Canadian Academies (CCA) to study these issues. The CCA brought out three detailed reports in December 2018 that reviewed the experiences of other countries that allow MAID and the possible effects in Canada of allowing MAID in the three scenarios examined. The reports also outlined where there were information or knowledge gaps.
The law on assisted dying also addressed the need to collect information about MAID. In November 2018, regulations came into force that set out what MAID information must be provided to the Government of Canada. Under the new regulations, Health Canada will publish annual reports with information collected from medical practitioners and nurse practitioners. The first report is expected in spring 2020.
Read the full text of the Background Paper: Assisted Dying in Canada After Carter v. Canada
Author: Marlisa Tiedemann, Library of Parliament